Palestinian Private Property Rights in Israel and the Occupied Territories

Howlett, Stacy, Vanderbilt Journal of Transnational Law

ABSTRACT

As the birth pangs of an emerging Palestinian state rage on, one question bars settlement, reconciliation, and peace: who is entitled to the land? On a macrocosmic level, this question has and will be answered through diplomatic negotiations, political pressure, and violence. The microcosmic question of the disposition of private property, however, must be taken into consideration before any lasting peace agreement can be reached.

The rights and interests of Palestinian refugees and Israeli settlers with respect to the land they have an interest in must be balanced with national needs for territorial continuity and peace. By tracing the transfer of private land from Arabs to Jews in the past 100 years, and by examining the law governing occupied territories, current treaties, and humanitarian law, one can suggest where title should rest.

This note argues that in most cases Palestinians have superior rights to land taken from them since the birth of Israel. Simply giving this land back to Palestinians, however, is not a viable option because it would cast serious doubt on the legitimacy of the state of Israel. Instead, Palestinians with property rights should be compensated for their property and for the inability to exercise their right to return.

I. INTRODUCTION

[Private property] is one of the most fundamental institutions of mankind
and there is no workable substitute for it. It is the perennial antagonist
of centralized power. Without private property there can be no prosperity,
no peace and no freedom. And justice itself will be a haphazard and
occasional thing. Private property is "the guardian of every other right,"
as the 18th century Virginian Arthur Lee said.(1)

Land ownership is and has always been the key issue in the Palestinian-Israeli conflict. Discussion and disputes over land usually take place on the macrocosmic level of national territory and borders. Exacerbating the Middle East conflict, the Holy Land(2) has been prized above all others for thousands of years because of its historical and religious significance. The specific issue of Palestinian's private property rights in Israel and the occupied territories, however, is critical to a lasting solution to the conflict in the Middle East.(3) Many feel that this issue is insurmountable and continually threatens to destroy the peace process.(4)

A nation is ultimately made up of individuals, so perhaps private land ownership is the microcosmic embodiment of the entire Palestinian-Israeli conflict. As Eyal Benvenisti states:

The private claim to repossess a plot of land is immediately translated
into a communal right to return, a right whose implementation may bring
about far-reaching social and political repercussions. Therefore, those
private claims raise one of the major stumbling blocks to
Israeli-Palestinian reconciliation.(5)

Many Palestinians displaced for up to fifty years still hold title certificates to homes where Israelis have put up their book shelves, planted gardens and raised their children. The breakdown of the peace process, the eruption of war-like violence, and the many lives lost in the past few months evidence the near impossibility of formulating a final settlement plan. This paper does not attempt to address the issue of borders or answer hard questions such as the status of Jerusalem. It simply suggests that because private property was taken from individuals, a successful settlement must involve individuals.

This paper will analyze the Palestinians' legal and equitable claims to private property in Israel and suggest a property settlement that can best accommodate both parties. Part II of this note will give background history of the Holy Land leading up to the present, with special emphasis on the displacement or transfer of populations within the region and the reasons behind these movements. …

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